Chapter 4 - Adjudications

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Chapter 4 - Adjudications

• Due Process

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Substantive Due Process

• Substantive Due Process refers to the limits on
  what government can regulate
• Federal - commerce clause, national security
  powers, foreign affairs,
• State - police powers v. privacy (abortion)
• Important in the early days of the court before
  the modern expansive reading of the commerce
  clause

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Modern Substantive Due Process

• Substantive Due Process is a limited concept in
  modern supreme court jurisprudence
• But a controversial one
• Even when there are constitutional bars, the
  court generally allows significant regulation
• There may be a right to an abortion, but the
  state can regulate health and safety aspects of
  abortion clinics
• There may be a right to own a gun, but the state
  can regulate carrying the gun - probably

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Procedural Due Process

• Procedural due process refers to the procedures
  by which government may affect the rights of an
  individuals in a specific situation
• Procedural due process arises through
  adjudications and other proceeding that affect a
  small group of persons based on the specific
  factual determinations
• There is no procedural due process right in
  legislation
• What is your appeal for legislation?

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History of Due Process

• The constitution mostly did not apply to the
  states
• The 14th amendment was eventually used to apply
  the constitution to the states
• Many of the due process protections we take for
  granted stem from the Warren Court and cases
  decided in the 1950s and 1960s.
• Criminal due process was developed earlier than
  administrative due process
• The cutting edge of due process is transforming
  criminal due process into administrative, as with
  terrorist detainees

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Takings Review

• What is a traditional property "taking"?
• What due process is involved?
• What about compensation?
• How is compensation measured?
• Why is traditional takings jurisprudence much
  older than individual rights jurisprudence?

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Regulatory Takings

• What is a regulatory taking?
• Why are these a hot topic in land use?
• What are the consequences of forcing the state to
  pay for any diminished value caused by
  regulation?
• Do you really think we can sort this out for
  coastal restoration?
• Should the owner pay the state if regulation
  enhances property values?
• Right of reclamation in LA

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Accidental Deprivations

• Assume the postman runs over your dog or the
  forest service accidentally burns down your home
• Have you suffered a taking?
• Are these due process deprivations?
• If so, how could the government provide due
  process?
• What if the government repeatedly forgets to give
  mental patients a hearing before committing them?
• Is this different?

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Rights v. Privileges - History

• In 1940 a city fires a policeman because the
  police chief heard a rumor that the policeman had
  accepted free coffee and doughnuts from a shop on
  his beat.
• Due process violation?
• Did not need to provide due process for not
  granting or for terminating a government benefit
• Government benefits were construed broadly -
  going to a state college
• You could condition these with restrictions that
  would otherwise be impermissible
• Bitter with the Sweet Doctrine

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Goldberg v. Kelly, 397 U.S. 254 (1970)

• The Last Gasp of Liberal United States Supreme
  Court Due Process Jurisprudence

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Learning Objectives

• Learn how the status of the affected persons can
  change the nature of the due process needed for
  fundamental fairness
• Learn how increasing due process rights can have
  unintended consequences in a program with limited
  resources

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The pre-1996 Welfare System

• What is the general attitude toward people on
  Welfare?
• How was this reflected in the administration of
  the welfare programs?
• What was AFDC?
• What were the unintended consequences of the
  welfare system?
• How does this affect health care financing?

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Stopped here
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Supreme Court Context

• Earl Warren
• Appointed Chief Justice in 1953 - by which
  president?
• What was Warren's background?
• Served until 1969
• What was the jurisprudential shift on the United
  States Supreme Court in the 1950s and 1960s?
• Who became Chief Justice after Earl Warren?

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Facts of the Case

• What state did this case arise in?
• What program was providing benefits to the
  plaintiffs?
• What was the economic status of plaintiffs?
• How does this complicate their effectively
  asserting their legal rights?
• Why did this result in the right to appointed
  counsel for indigent criminal defendants?

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Statutory Entitlements

• What makes a benefit an entitlement?
• What is a matrix regulation?

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Matrix Regulation
Test 1 Test 2 Claimant Status
Income less than 3000 for family of 2 Income less than 6000 for family of 4 x
Assets less than 2000 Head of household is disabled x
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Pre-Goldberg Post vs Pre-Deprivation Due Process

• What was the administrative process that
  plaintiffs were contesting?
• What do you think is the relationship between the
  agency personnel and the plaintiffs?
• What were the problems with the informal system
  of reevaluating beneficiaries status?
• What was the impact on plaintiffs of terminating
  benefits?
• How does this further complicate post-deprivation
  hearing rights?

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Why a Hearing?

• Why couldn't plaintiff hire an attorney and file
  a written response to the termination letter?
• What could she do at a hearing that she could not
  do in writing?
• Why wasn't a post-termination hearing enough?
• Why didn't the state want to give everyone a
  pre-termination hearing?

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Goldberg Rights - I

• 1) timely and adequate notice
• 2) oral presentation of arguments
• 3) oral presentation of evidence
• 4) confronting adverse witnesses
• 5) cross-examination of adverse witnesses

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Goldberg Rights - II

• 6) disclosure to the claimant of opposing
  evidence
• 7) the right to retain an attorney (no appointed
  counsel)
• 8) a determination on the record of the hearing
• 9) record of reasons and evidence relied on and
• 10) an impartial decision maker

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Administrative Costs of Goldberg

• What does granting these hearings do to the cost
  (delay personnel time) of removing someone from
  welfare?
• What does it do to the balance of benefits costs
  to administration costs?
• What does this do to the global cost of the
  benefits system?

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Short-Term Impact of Goldberg

• How does raising the administrative costs affect
  new claims for welfare?
• What is the incentive for the welfare officers
  under the Goldberg ruling?
• What expectation does it create for welfare
  recipients?
• What long term problem did this contribute to?

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Why Administrative Due Process is Not Liberal or
Conservative

• Conservatives
• Want the little man (and the rich man) to be
  fairly treated by the government, i.e., to be
  able to resist regulation
• Liberals
• Want the individual to get lots of due process,
  and cannot exclude corporations
• Both think the government losing against
  individuals is good

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Fixing Welfare - The 1996 Act

• Who pushed for welfare reform?
• Who signed it?
• What is the new name for AFDC?
• TANF - Temporary assistance for Needy Families
• What does the name change tell you about the
  change in philosophy?
• How long do you get on the program?
• How does this affect future Goldberg actions?
• Will there be facts in dispute?

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The Subsequent History of Goldberg

• Never overruled
• Superseded by Matthews
• Ultimately limited to its specific facts
• Unfortunately, many public health scholars did
  not notice then and have argued that all
  deprivations that affect individuals should have
  pre-deprivation process.